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TMI Blog2021 (9) TMI 256X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the Corporate Debtor and that the said matter is at the stage of liquidation. The Learned Counsel for the Respondents as well as the Learned Counsel for the Appellant have referred to judgment of this Tribunal in RAVI AJIT KULKARNI, PERSONAL GUARANTOR OF PRATIBHA INDUSTRIES LIMITED AND ORS. VERSUS STATE BANK OF INDIA [ 2021 (9) TMI 60 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI] and the Learned Counsel for both sides agree that the Personal Guarantor of Corporate Debtor may be given the opportunity before the Resolution Professional and orders on similar lines as in the matter of Mr. Ravi Ajit Kulkarni vs. State Bank of India could be passed. Thus, at the stage at which the matter stood such finding in advance should not have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directed the Resolution Professional to make recommendations along with the reasons in writing for acceptance or rejection of the Application filed under Section 95(1) of the IBC r/w Rule 7(2) of the "Insolvency and Bankruptcy (Application to Adjudicating Authority for IRP for Personal Guarantors to Corporate Debtor) Rules, 2019" ("Rules" for short). The Adjudicating Authority sought Report under Section 99 by the impugned order. 2. The second impugned order dated 9th June, 2021 has been passed in I.A 1774/2021 in the same Company Petition by which order, Application of the Appellant to set aside the earlier order on the basis that notice was not given to the Appellant was rejected. 3. Learned Counsel for the Appellant submits that in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the Resolution Professional and orders on similar lines as in the matter of "Mr. Ravi Ajit Kulkarni vs. State Bank of India" could be passed. 5. In Judgment in the matter of "Mr. Ravi Ajit Kulkarni vs. State Bank of India", this Tribunal had in para 47 observed as under:- "47. We also find that it was an error on the part of Adjudicating Authority to observe in Para 10 as reproduced above and hold that there is a "default" when matter was at the stage of acting on the application under Section 95 read with Section 96. According to us, as mentioned, the stage for considering default would arrive when the matter is taken up under Section 100 of IBC. The Appellant is right when the Appellant submits that if the Adjudicating Authority gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of natural justice in view, limited notice of the application should be given to the Personal Guarantors of the Corporate Debtors. The limited notice has to be only to secure presence of the Personal Guarantor referring to the Interim Moratorium which has commenced. Before appointment of the Resolution Professional no hearing as such is contemplated and before appointment of the Resolution Professional the Debtor cannot be allowed to raise disputes for which the stage would be Section 100. Under NCLT Rule 11, Adjudicating Authority is duty bound to pass orders to prevent abuse of process. As such, limited notice to appear may be given to the Personal Guarantors so that when Resolution Professional is appointed, he may provide material a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .03.2021 and the observations in the second impugned order dated 09.06.2021 that the notice is not necessary are set aside. The appointment of Respondent No.2 as the Resolution Professional is not disturbed. It is stated that he has already given report. As we have set aside the premature observations made, with regard to default, by the Adjudicating Authority, we set aside the report given in consequence to such order. We remit back the matter to the Adjudicating Authority. Parties to appear before the Adjudicating Authority on 7th September, 2021. The Resolution Professional will give opportunity to the Appellant in terms of Section 99 and complying provisions give fresh report. The Adjudicating Authority will then proceed further with th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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